Blog

CLASSIC LIST

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04/Jan/2024

CMS will be hosting a webinar regarding Certain Civil Money Penalties Final Rule for NGHP Responsible Reporting Entities (RREs). The format will be opening remarks and a presentation by CMS that will include discussion of the Final Rule, the auditing process and important dates, followed by a question and answer session. RREs who would like to submit questions in advance of the webinar are encouraged to do so using the dedicated resource mailbox at Sec111CMP@cms.hhs.gov.


 

Date:    January 18, 2024
Time:    1:00 PM ET

Webinar Link:  https://cms.zoomgov.com/s/1614664558?pwd=enlySUNSSjF1UnMzUy9vRWJodWl1dz09
Passcode:        513018

Or to connect via phone:

Conference Dial In: (833) 568-8864
Conference Passcode: 161 466 4558

Important Note: This is a public webinar and there is no pre-registration needed. The webinar link should only be utilized the day of the webinar. Due to the number of expected participants, please log in at least 10 minutes prior to the start of the presentation.


 

CMS has also announced it will be hosting a webinar regarding Certain Civil Money Penalties Final Rule for GHP Responsible Reporting Entities (RREs). Information on that webinar can be found on CMS’s website.

Additional information about recent updates from CMS can be found here. If you have questions on how topics discussed in this webinar may affect your clients, please contact Medivest here or call us at 877.725.2467.


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20/Dec/2023

You have settled your injury case and have decided to self-administer your Medicare set-aside (MSA) arrangement. Whether you are just beginning to embark on this journey or if you have been self-administering your account for a while and need a refresher, here are a few tips you should know. These tips can help you navigate through this complicated process. They will ensure that you won’t jeopardize your Medicare benefits, help you preserve your MSA funds so they will be there when you need them the most, and will help you prepare to administer your MSA throughout 2024 and beyond.  

 

Helpful Self-Administration Tips:  

Set Up your MSA Correctly

  • Know how your Medicare Set-Aside account will be funded. There are two ways to fund MSA account either with a lump-sum payment or a structured annuity. If your settlement says that it will be funded as a lump sum, one check will be issued. Or, if your settlement says that it will be funded with a structured annuity, then an initial deposit is made to establish the account, followed by annual deposits.  
  • Open a separate bank account to deposit your MSA funds. Do not co-mingle your MSA funds with your personal funds.   
  • Deposit your MSA funds into an interest-bearing bank account, insured by FDIC.  
  • It is recommended to find a bank that does not charge fees when you have a low balance and preferably to find an account that you could write checks on.  

 

Learn the Process and Develop Good Habits Now

  • Keep your settlement paperwork in a safe place.  
  • Know your date of settlement. Any expense that is injury related, Medicare covered, and has occurred after the date of settlement can be paid out of your Self-Administered Medicare Set-Aside account.  
  • Only use the MSA funds from your account to pay for Medicare covered medical treatment and prescription costs related to your injury, even if you are not yet enrolled in Medicare.  
  • Keep accurate records of the expenses you’ve paid out of your account. You will not submit these records annually, but Medicare may request these records as proof that you are using the account correctly.    
    • Transaction date 
    • Check number (if any, or transaction number if present) 
    • “Payable to” or health care provider name  
    • Date of service 
    • Description (procedure, service, or item received; deposit; interest; other allowable expense) 
    • Amount paid 
    • Any deposit amount 
    • Account balance 
    • Keep itemized receipts 
    • Banks statements 
    • Tax records 
  • You will need to send an annual attestation form every year to Medicare, no later than 30 days after the anniversary date of your Workers Compensation settlement regarding funds remaining in the account after expenses have been paid.  

 

Know What Expenses Your MSA Covers

  • MSA account can be used to pay for the following: 
    • Cost of copying documents 
    • Mailing fees/postage 
    • Any banking fees related to the account 
    • Income tax on interest income from the account
  • You may not use the MSA account to pay for:  
    • Fees for trustees, custodians, or other professionals hired to help administer the account 
    • Expenses for administration of the MSA (other than those listed above) 
    • Attorney costs for establishing the MSA 
    • Medicare premiums, co-payments and deductibles

 

What to Do When Your MSA is Exhausted or Depleted

  • If you are a Medicare beneficiary and your funds have been depleted, you can forward your bills to Medicare for payment as long as the expense is Medicare covered and injury related. 
  • If you are not Medicare covered and your funds have been depleted, you will need to coordinate benefits with your other health insurance providers or pay out of pocket. 
  • When your account is permanently exhausted or depleted, which means there is no money left in the account and there will be no future deposits, you will need to submit within 60 days of the date your account is depleted a final attestation letter stating the account is ‘completely exhausted’.    
  • Notify Medicare’s Benefits Coordination & Recovery Center (BCRC) if death has occurred before the WCMSA is permanently exhausted.   
  • If you lose your Medicare entitlement, you are not entitled to release the MSA funds. 

 

What Happens it Self-Administering is Too Difficult?

If learning how to self-administer your MSA on your own is too difficult to navigate, contact Medivest to learn more about our Self-Administration Kit with assistance. Or, if you’re interested in a more hands-off solution, Medivest Professional Administration Services can remove potential risks and the cumbersome tasks associated with administrating your Medicare Set-Aside funds, and in most cases can even stretch the lifespan of a MSA. Please call us at 877.725.2467 or reach out to us here. 


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06/Dec/2023

On December 4th, 2023, Centers for Medicare & Medicaid Services (CMS) shared a new report titled Workers’ Compensation Medicare Set-Aside (WCMSA) Fiscal Year Statistics 2023. The report provides four fiscal years of data regarding Workers’ Compensation Medicare Set-Aside (WCMSA) Proposed Value and Workers’ Compensation Review Contractor Values (WCRC) from 2020 to 2023.

Takeaways

Total Submissions
Total WCMSA submissions to CMS declined steadily between CMS’ FY 2020 and FY 2022, descending from 16,517 to 13,752, a reduction of almost 17% in three years. FY 2023’s 15,743 submission count represents a reversal of that trend for the time being. This may be the result of the appearance of Section 4.3 in the WCMSA Reference Guide in 2022, in which CMS speaks about “non-submit” or “evidence-based” MSA programs, describing them as “a potential attempt to shift financial burden”.

Proposed vs Recommended
Those who decided to voluntarily submit their proposed WCMSA to CMS for review were rewarded with recommendations that were, all told, 22.95% percent higher than the proposed amount. For comparison, the average percentage difference between the submitter’s proposed MSA and CMS’ recommended MSA for CMS’ FY 2020 through FY 2022 was 13.9%. This is an increase of roughly 65% in CMS’ FY 2023 versus the prior three years’ average. Not only is the counter percentage higher, but the total recommended amount is higher. So, it’s not as if submitters have been lowballing their submissions. For those who embraced a non-submit program for fear of significantly higher MSA counters, CMS dangled no carrots in FY 2023 to encourage a return to voluntary submission.

Proposed MSAs and Total Settlement Amounts
WCMSAs submitted by the industry have, on average, consistently ranged between a proposed amount of $70,439 and $74,847 between CMS’ FY 2020 and FY 2023. Total Settlements utilizing WCMSAs over the same period have averaged between $159,579 and $171,170. Accordingly, WCMSAs constitute around 43% of the total settlement amount in which they are included (pre-CMS recommendation).

Medical vs Rx
Medical expenses with MSAs have increased steadily in recent years and CMS’ FY 2023 is no exception. CMS’ recommended total for the medical portion of submitted WCMSAs is up 13% since 2020. Conversely, Rx expenses have declined by 33%. While several factors are likely to be at play here, CMS’ use of sometimes aggressive NDCs to price drugs may be one culprit. Medivest consistently sees submitted MSAs priced using drug NDCs unavailable in the actual market, and well below market average.

The Big Question

These are statistics from those WCMSA’s submitted for approval, meaning they were written by industry-trained professionals in an attempt to match CMS’ recommended methodology. If the industry is consistent, what has changed at CMS? Also, what does this say about CMS’s position concerning non-submitted WCMSA’s that were written to Evidence-Based Medicine or other non-submit standards in light of the previously modified Section 4.3 of the WCMSA Reference Guide?

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us directly at 877.725.2467.


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On November 13, 2023, CMS hosted a previously announced webinar focused on its upcoming expansion of Total Payment Obligation of Claimant settlement data (TPOC) to be reported under the Medicare Secondary Payer statute’s (MSP) Section 111 Mandatory Insurance Reporting.

The additional TPOC settlement data to be reported specifically includes whether a WCMSA amount was established and if so, any amount above $0.00 so designated, the amount that was approved by CMS (if applicable), the period of coverage (i.e. life expectancy of the injured worker), the funding type – whether funded by lump sum or via a structured annuity (without commenting on any preference or presumptions by CMS if funded one way or another), if funded by structure, the seed amount (a type of down payment estimating the first two years of coverage plus initial surgery for any included body part(s), the anniversary deposit (when additional annuitized payments would be made), the Case Control Number (starts with a W if submitted to CMS for approval or a 0 or 1 if not submitted), and the Professional Administrator’s EIN.

The premise for including the additional WCMSA information with TPOC data is to allow CMS to flag injury related medical diagnosis codes (ICD codes) in the Medicare beneficiaries’ record called the Common Working File (CWF) with a “W” (at least for those WCMSA’s that have been approved) to assist CMS in being more efficient at denying payment for medicals that are injury related and compensated in the TPOC settlement. The Workers’ Compensation (WC) carriers or self insureds appoint Responsible Reporting Entities (RREs) to currently provide Section 111 data for both ongoing claims with Ongoing Responsibility for Medicals (ORMs) and for settlements (TPOCs). Under this expanded reporting data set, RREs would be expected to submit this information for then current Medicare beneficiaries, with testing to occur in 2024 and implementation projected to begin in early 2025 as early as January 2025. While presenter John Jenkins, CMS Health Insurance Specialist, who also presented for CMS when the addition of Section 4.3 in the Workers’ Compensation Medicare Set-Aside Reference Guide (WCMSA Reference Guide) was announced and when CMS modified that language, made it clear that this expanded reporting expectation would not extend to No Fault or liability settlements compensating for future medicals (i.e. NFMSA’s or LMSA’s), he did say it was intended to cover WCMSA TPOC information even if the WCMSA at issue was not submitted to CMS for review/approval. For example, if the WCMSA allocation report used an Evidenced Based Medicine cost projection Method or other non-submit projection method as opposed to a CMS cost projection methodology espoused under the WCMSA Reference Guide, Jenkins explained that there would still be an expectation that this additional data would be reported to CMS.

Jenkins also indicated that once the WCMSA information is reported under Section 111, notification would be sent to the Medicare beneficiary directly.

As background in describing the history of Section 111, Jenkins reminded listeners that Section 111 is part of the federal MSP statute (42 U.S.C. Section 1395y(b)(2) et seq., and that its provisions were added to the MSP pursuant to the 2007 Medicare and Medicaid SCHIP Extension Act (MMSEA)(implemented a few years later). He also pointed out that in addition to the federal MSP statute, the regulations to the MSP are found in the Code of Federal Regulation (CFR) and that 42 C.F.R. 411.46 specifically, reiterates Medicare as a secondary payer to Workers’ Compensation claims (including for both ORM and TPOC’s, and that nothing in the webinar would replace any existing requirements of Responsible Reporting Entities as to thresholds for reporting ORM or TPOC’s).

Answers to questions from the webinar audience were provided by both Steve Forry, CMS Director Division of MSP Program Operations and presenter, John Jenkins, CMS Health Insurance Specialist.

Questions regarding the webinar’s contents and the subject matter may be submitted to CMS via its dedicated Section 111 email address, s111WCMSA@cms.hhs.gov.

Take Aways

This webinar gives us a glimpse as to how CMS intends to address the EBM and other non-submit WCMSA’s that it originally referenced when it added Section 4.3 to the WCMSA Reference Guide.  How CMS will be able to require data for something that is not required by law was not elaborated on and is yet to be seen.  However, as we in the MSP industry have always understood, while the WCMSA submission process is and has always been voluntary, we always knew that if you submit for approval, you are essentially now in the CMS arena where you will be playing by its guidance/rules.  Now, even if you don’t submit a WCMSA for approval, ostensibly for your RRE to be able to complete the Mandatory Insurance Reporting under Section 111, it seems the WCMSA amount and other new data will be available for CMS to assist it in its quest to comply with the MSP and prevent Medicare from paying until the primary plan’s injury related future compensation has been exhausted.

Claimant attorneys should be made aware of this procedure at the time it is implemented so they can field questions that may come back to them by injured workers.  Likewise, adjusters handling WC claims may also get follow up calls asking for clarification and what the notification means.  Ultimately, this means that representatives for WC carriers and representatives for injured workers should solidify their methods of providing informed consent to their respective clients so that nobody is surprised when a post settlement injury related medical that is usually Medicare covered is denied.  For those who establish WCMSA’s, the solution is to bill the WCMSA, document the expenditure (with items and services priced at the respective fee schedule rate and the prescription drugs at Redbook Average Wholesale Price (AWP), and keep up with attestations to CMS on an annual basis so that once exhausted, Medicare would become primary.

What’s New?

A new coversheet is available for any Non Group Health Plan (NGHP) or agent when corresponding with the Commercial Recovery Center (CRC) and can be found here:  CRC NGHP Correspondence Cover Sheet (cms.gov)

The NGHP Appeals Quick Reference Guide was updated and is available here:  NGHP Submit Appeals Quick Reference Guide April 2023 (cms.gov)

For Additional Information

Count on Medivest to help keep you up to date with the constant updates, guidance, and rule changes related to CMS’s enforcement of the MSP on a regular basis. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.


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24/Oct/2023

Last year, Medivest wrote about the importance of protecting your client’s government benefits during the settlement process. The full blog can be read here, but to quickly summarize:

If settlement proceeds are handled incorrectly, eligibility for government benefits may be jeopardized. Depending on the eligibility criteria of the specific benefit program, different planning solutions and courses of action should be considered to help the injured party maintain their benefit eligibility. 

However, attorneys need to be aware of another potential risk for their clients’ means-tested benefits. If your client is fundraising to cover the cost of their medical bills and/or services and equipment that insurance does not cover, they could potentially lose their government benefits, particularly Medicaid and Supplemental Security Income (SSI) before the settlement has even begun.

How Benefits Become Endangered

Because the settlement process is often a slow one, crowdfunding services such as GoFundMe have become an increasingly common way for injured parties to cover their medical expenses. When someone engages in fundraising and receives donations or contributions, it can increase their income and assets, potentially pushing their financial situation above the eligibility threshold for these government benefits. Here is how it can happen:

    1. Income Increase: Fundraising often involves receiving money or valuable items as donations from friends, family, or the community. This additional income can be considered when determining eligibility for means-based benefits. The increase in income may exceed the allowable limits set by the government program.
    1. Asset Accumulation: In some cases, fundraising can lead to an accumulation of assets or resources, such as savings accounts, stocks, or valuable items. These assets can also be taken into account when determining eligibility for government benefits, as they may exceed the allowed asset thresholds.
    1. Reduced Benefit Amounts: If a person’s income or assets exceed the program’s limits, they may no longer qualify for certain government benefits, or their benefit amount may be reduced. This can result in a loss of crucial financial support, including healthcare coverage, food assistance, or cash benefits.
    1. Reapplication and Reporting Requirements: Individuals receiving means-based benefits are typically required to report any changes in their financial situation promptly. Failure to report increased income or assets from fundraising can result in legal consequences, including the requirement to repay benefits received improperly.
    1. Loss of Eligibility: In some cases, if an individual’s income or assets exceed the program’s limits, they may become ineligible for benefits altogether. This can lead to financial hardship for the person and their family, as they may have been relying on these benefits to meet their basic needs.

 

This does not mean fundraising should be avoided by an injured party. It simply means it should be done carefully and with consultation. Setting up a special needs trust or ABLE account is a good practice, but most clients (and some attorneys) would need outside professional assistance setting one up. However, for plaintiffs in the early stages of settlement, a new charity called The Plaintiff Fund may provide an effective additional option.

The Plaintiff Fund

Beginning in January of 2024, the Plaintiff Fund will provide plaintiffs support in creating a medical fundraising campaign, with $1,000 toward their medical expenses, and a national resource network of medical service and product providers. So not only are plaintiffs able to get a partner experienced with fundraising and a start-up donation, but they also get peace of mind knowing their government benefits will remain intact.

Even after settlement is completed, some plaintiffs may learn that their medical bills and expenses exceed the future medicals portion of their settlement. The Plaintiff Fund is available for those individuals as well and is a great support tool for attorneys to offer their client after the case is completed.

The Plaintiff Fund will be invaluable to many plaintiffs. We at Medivest are proud to support it! Everyone who supports plaintiffs should get involved! For further information about the Plaintiff Fund or to make a donation to their cause, visit them at website. For additional services to stretch and protect the medical portion of your clients’ settlement, such as Professional Medicare Set-Aside Administration, contact Medivest here.


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19/Oct/2023

CMS will be hosting a Section 111 Workers’ Compensation Reporting Webinar on Monday November 13, 2023 applicable to all primary plans considered Non-Group Health Plans (NGHP) including Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation. Section 111 is also known as Mandatory Insurance Reporting and CMS will be focus its webinar on the expansion of Section 111 Non-Group Health Plan (NGHP) Total Payment Obligation to Claimant (TPOC) reporting to include Workers’ Compensation Medicare Set-Aside (WCMSA) information.

As usual, the format will include opening remarks and then a presentation by CMS that will include background and timelines, followed by a question-and-answer session. CMS has indicated that “because this expansion impacts reporting of WCMSAs, it is strongly recommended that Responsible Reporting Entities (RREs) who report Workers’ Compensation settlements attend.”


 

Date:  November 13, 2023
Time:  1:00 PM ET

Webinar Link: htps://cms.zoomgov.com/j/1606789743?pwd=VzZ0Uk96ZWs1NUUvbm5xUnpJU2l4Zz09

Passcode: 100553

Or to connect via phone:

Conference Dial In: 1-833-568-8864
Conference Passcode: 160 678 9743

Due to the number of expected participants, please log in at least 10 minutes prior to the start of the presentation.


 

Additional information about recent updates from CMS can be found here. If you have questions on how topics discussed in this webinar may affect your clients, please contact Medivest here or call us at 877.725.2467.


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CMS has issued its long-awaited final rule on enforcement of Civil Monetary Penalties regarding failing to register and accurately provide Mandatory Insurance Reporting on those payments that meet the $750 Section 111 reporting thresholds for payments for ongoing Workers’ Compensation (WC) and No Fault claims (Ongoing Responsibility for Medicals or ORM) as well as settlements, judgments, and awards from any primary plan such as any type of liability payment whether insured or self-insured, WC, or No Fault (Total Payment Obligation to Claimant or TPOC). 

The CMS Alert on the topic can be viewed here. CMS’s description is that “CMS has finalized its rule specifying how and when CMS will calculate and impose civil money penalties (CMPs) when group health plan (GHP) and non-group health plan (NGHP) responsible reporting entities (RREs) fail to meet their Medicare Secondary Payer (MSP) reporting obligations. The text of the final rule can be found and reviewed in its entirety in the Federal Register, which can be found at https://www.federalregister.gov. The date of publication in the Federal Register will be October 11, 2023 (with an effective date of December 11, 2023) and will become applicable to primary plans and their RRE’s October 11, 2024. This document is able to be viewed online at, and on https://federalregister.gov/d/2023-22282 and on https://govinfo.gov. 

On September 11, 2023, CMS declared this then proposed rule to not be economically significant (i.e. not adversely affect the economy in a material way) clearing the way for the rule’s promulgation.  

Take Aways 

Medivest has been expecting this rule for years.  Most primary plan payers have Responsible Reporting Entities (RRE’s) in place and have established a method of collecting and transmitting the required Medicare Secondary Payer Act (MSP) data to CMS electronically as intended by the Mandatory Insurance Reporting section (most commonly referred to as Section 111) of the MSP’s MMSEA amendment. Those primary plan carriers and entities that have not established a formalized Section 111 reporting process should be making plans to comply now to avoid the long-awaited enforcement penalties.  Additionally, as a result of the final rule coming to fruition after clearing the administrative economic impact process, claimants’ and plaintiffs’ attorneys may likely see more language added by the defense (primary plans) to hold the injured party responsible to provide and/or confirm correct data during the pendency of claims and certainly at the time of settlement of claims, and to timely respond for updates when requested from time to time, if the primary plan’s Section 111 report has been rejected by CMS due to identification data errors so the primary plan can correct same and avert any CMP.  Parties should work with their MSP compliance partners and attorneys to make sure procedures are compliant with the MSP and not asking parties to go beyond the MSP or its regulatory rulemaking requirements. 

For Additional Information 

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467. 


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14/Sep/2023

On September 13th 2023, the Centers for Medicare & Medicaid Services (CMS) announced an upcoming increase to the maximum settlement amount for the Fixed Percentage Demand Calculation Option.

When settling a liability or workers’ compensation case, a beneficiary, or their attorney (or other representative) may request that Medicare’s demand amount be calculated using the Fixed Percentage Option. Currently the total settlement amount for the Fixed Percentage Option cannot exceed $5,000. Effective October 2, 2023, the maximum settlement amount will be raised to $10,000.

What is the Fixed Percentage Option?

The Fixed Percentage Option offers a simple, straightforward process to obtain the amount due to Medicare. It eliminates time and resources typically associated with the Medicare Secondary Payer (MSP) recovery process since you will not have to wait for Medicare to determine the conditional payment amount prior to settlement. The Fixed Percentage Option may be elected, if the following eligibility criteria are met:

      • The liability insurance (including self-insurance) settlement, judgment, award or other payment is related to an alleged physical trauma- based incident and;
      • The total settlement is for $5,000 (Note this amount will be raised to $10,000, effective October 2, 2023) or less.
      • You elect the option within the required timeframe and Medicare has not issued a demand letter or other request for reimbursement related to the incident.
      • You have not received and do not expect to receive any other settlements, judgments, awards, or other payments related to the incident.

For More Information

For additional information on the Fixed Percentage Option, please see the Fixed Percentage Option Presentation and the Fixed Percentage Model Language at CMS.Gov and consult the Downloads Section. To learn more about protecting the medical portion of your clients’ workers’ compensation and liability settlements, contact Medivest about Medicare Set-Aside Professional Administration.


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25/Jul/2023

On July 19, 2023, the Centers for Medicare & Medicaid Services (CMS) released their list of the Top 10 Section 111 Non-Group Health Plan Reporting Errors between January 1 – June 30, 2023. The chart with the list of errors and their rank can be viewed below. A downloadable PDF of this chart cane be found at the CMS website here.

Medivest will continue to monitor news and updates from CMS, and will keep its readers up to date when important announcements are made. For questions about this chart or any other recent updates, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.


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Some people may be surprised to learn that an individual does not always need to be a citizen of the United States to qualify for government benefits such as Social Security Income (SSI), Social Security Disability Insurance (SSDI) or Medicare.  Provided the individual receives or qualifies to receive SSI or SSDI benefits, and the person otherwise qualifies for Medicare, a non-US citizen (non-citizen) typically qualifies for Medicare Part A without having to pay a premium.  They would still need to pay a premium for Medicare Part B.  Before addressing how a non-citizen may become eligible to receive Social Security benefits and therefore, be one step closer to qualifying for Medicare, we will first look at the distinctions between SSI and SSDI and how US citizens become eligible for either.

SSDI and SSI Requirements for U.S. Citizens

For U.S. citizens to qualify for SSDI, they must be under 65, have earned enough work credits1 by working and paying Social Security (FICA) taxes, and have a qualifying disability sufficient to meet the definition designated by the Social Security Administration (SSA).  A majority of those who apply for SSDI do not get accepted on the first try. Many injured individuals have found value in retaining attorneys to help with the application (and the commonly required appeals) process.

A major distinction between SSDI and SSI is that SSI does not require any work history or the need for the individual to be disabled, even though disability is one of the ways a person may qualify for SSI.  For example, those that are disabled but haven’t accumulated enough work credits to be eligible for SSDI, may qualify for SSI.  Furthermore, U.S. citizens who are 65 or older, or who are blind or are disabled, and have limited income and limited resources, and are not confined to an institution, are generally eligible for SSI.  Another important distinction between SSDI and SSI is that once a person receives SSDI benefits for two years2 , the SSDI recipient will be eligible for Medicare benefits.

Requirements for Non-U.S. Citizens

If a person is a non-citizen and meets the following requirements, they may be eligible for Social Security benefits:

  • Non-citizens who are legal permanent residents
  • Active members or veterans of the U.S. military
  • Foreign workers who have paid FICA taxes for the required time period3
  • Other non-citizens who are not permanent residents but who can prove that they are here legally (i.e., refugees, those under political asylum, temporary visitors with non-immigrant visas, abuse victims, etc.)

There are many exceptions and rules regarding non-citizens’ status and SSI and SSDI eligibility.  Additionally, non-citizens that are allowed to work in the US but not required to pay FICA taxes (and don’t), are not eligible for SSDI.

Aside from standard SSDI eligibility requirements that everyone must meet*, there are two additional requirements that non-citizens must meet in order to qualify for SSDI:

    1. If an individual was assigned a Social Security number on or after January 2, 2004, the individual’s number must have been assigned based on their authorization to work in the U.S. or they must have B-1, D-1, or D-2 worker status.
    2. Before receiving disability benefits, the individual must show proof that they are in the U.S. legally.

 

Non-Citizens Returning to their Countries

Once an individual receives either type of Social Security benefits as a non-citizen, if, when and how these benefits will be distributed depends on the country that they are citizens of and how much time they may spend in that country, whether that country is on a restricted list, and whether that country has a bilateral Social Security agreement with the U.S.  Some countries that the SSA is restricted from sending Social Security payments to, such as those listed below, are disqualified from accepting Social Security payments.

    • Azerbaijan
    • Belarus
    • Cuba
    • Kazakhstan
    • Kyrgyzstan
    • Moldova
    • North Korea
    • Tajikstan
    • Turkmenistan
    • Ukraine
    • Uzbekistan
    • Vietnam

 

Ineligible Countries

Legal residents from Cuba, North Korea, and Vietnam may not receive disability benefits, even if they meet the other necessary requirements.

If a citizen of one of the above-listed countries, other than from Cuba, North Korea or Vietnam, goes back to their home country after working and living in the U.S. and otherwise qualifies for a form of Social Security Benefits, the SSA will not send the individual payments and cannot send the payments to someone else on their behalf (unless an exception is granted).  The SSA will withhold these payments and will only send them to the individual once they are in a country to which the U.S. may send those payments.  Generally, if the SSA is not restricted from sending payments to a particular country, but the country also does not have a bilateral Social Security agreement in place with the U.S., the SSA can send payments to the individual, but will stop the individual’s payments after the person has been outside of the U.S. for six months.  If the individual returns to the U.S. and stays for at least a month, they are usually eligible to begin receiving benefits again. The SSA’s website provides information and exceptions concerning these matters including the difference between a person receiving benefits based on their own earnings or residency in the U.S. versus receiving benefits based on the earnings or residency in the U.S. of a dependent or survivor.  A pamphlet that provides additional information is available on SSA’s website.

The Medicare Secondary Payer Act (MSP), 42 U.S.C. §1395y(b)(2), enacted in 1980 and aimed at preserving Medicare Trust Funds and reigning in Medicare costs that had up to that point been much larger than projected4 , is focused on both the timing of payments and the recovery of Medicare’s conditional payments5 for medical expenses6 of injured Medicare beneficiaries or injured people who have a reasonable expectation of becoming Medicare beneficiaries within 30 months from settlement, when another (primary) payer is responsible for payment or prompt reimbursement of the injured individual’s injury related Medicare covered medical expenses.7 There are several ways people fall into the reasonable expectation of becoming a Medicare beneficiary within 30-month time frame, including reaching 62.5 years of age, applying for SSDI, being denied but considering appeal of SSDI denial, being in the process of appealing the denial, or being diagnosed with end-stage renal disease or ALS, a/k/a Lou Gehrig’s disease.

Contact Us

If you have additional questions regarding government benefits for your clients, please reach out to us here. Additionally, if you are involved in a settlement with a client whose government benefits may be at risk, Medivest would like to provide you with the following data chart. It summarizes a variety of public benefit programs and the best course of action you can take to ensure your clients’ benefits are protected. Click here to download.

 

  1. The number of work credits needed varies based on the age of the individual at the time they become disabled.  Required credits start at 6 credits or 1.5 years of work during the three-year period before the disability started for people disabled in or before the quarter they turn 24 years of age and move up to a requirement for 40 qualifying quarters at or after they turn 62 years of age, with varying requirements in between. []
  2. The two-year requirement does not include the approximate six-month wait time between the date disability is approved and benefits begin. Eligibility begins 30 days after the established onset date (EOD) so along with a mandatory five-month waiting period, it is essentially six months before payments start or 30 months from EOD to Medicare eligibility. []
  3. *According to the SSA website, the required work requirements for non-citizens seem to be different from those of US citizens as well. The requirement for non-citizens does not appear to have a sliding scale for work credits that US citizens are required to have.  Here is an example of some non-citizen requirements for SSDI eligibility from SSA’s website: “[t]hey are a Lawfully Admitted for Permanent Residence (LAPR) with 40 qualifying quarters of earnings.  Work done in the US by a person’s spouse or parent may also count toward the 40 qualifying quarters of earnings, but only for getting SSI. Quarters of earnings earned after December 31, 1996 are not counted if the individual, spouse, or parent worked or received certain benefits from the U.S. government based on limited income and resources during that period. If a person entered the U.S. for the first time on or after August 22, 1996 they may not be eligible for SSI for the first five years as a LAPR, even if they have 40 qualifying quarters of earnings.” More information regarding this topic is available here.  Sometimes depending on the country of citizenship, there may also be other ways for a non-citizen to qualify for SSI including living in the US for required periods of time or having a spouse or parent who has lived long enough in the U.S. (See https://www.ssa.gov/pubs/EN-05-10137.pdf).  You are encouraged to consult with an attorney practicing in the SSI and SSDI benefits field to help determine whether any particular person may qualify for Social Security benefits. []
  4. Humana Med. Plan, Inc. v. Western Heritage Ins. Co., 2018 WL 549834 (11th Cir. Jan. 25, 2018) declining to rehear 2016 11th Cir. case en banc and citing 5 James B. Wadley, West’s Federal Administrative Practice §6305 2017. []
  5. Or conditional payments by Medicare Advantage Plans that a primary payer should have paid. []
  6. Medical items, services, and expenses, including prescription drug expenses. []
  7. 42 U.S.C. § 1395y(b)(2)(A)(ii) prohibits Medicare from making payment to the extent that “payment has been made or can reasonably be expected to be made under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance.” Furthermore, under the Code of Federal Regulations, the Centers for Medicare and Medicaid Services (CMS) has rights to recover any conditional payments Medicare made that a primary payer should have made or reimbursed, specifically, “CMS may initiate recovery as soon as it learns that payment has been made or could be made under workers’ compensation, any liability or no-fault insurance, or an employer group health plan.” 42 C.F.R. § 411.24(b). []

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